The Insignificance of the Blaine Amendment

Few events in American constitutional history have been as maligned as the Blaine Amendment of 1876. The proposed federal amendment sought to apply the proscriptions of the First Amendment religion clauses to the actions of state governments while it expressly prohibited the appropriation of public funds for the support of any school under the control of a religious sect or denomination. The... (see full summary)

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Few events in American constitutional history have been as maligned as the Blaine Amendment of 1876. ' The proposed federal amendment sought to apply the proscriptions of the First Amendment religion clauses to the actions of state governments while it expressly prohibited the appropriation of public funds for the support of any school under the control of a religious sect or denomination.2 The Amendment came about at a time of heightened controversy over the religious character of American public education and the public funding of private religious schooling, primarily Catholic parochial schools.3 At times, the debate over the Amendment and the larger "School Question" devolved into ethnic and religious aspersions, a fact that has led critics to charge that the Amendment and the principles it represented were motivated chiefly by anti-Catholic animus.4 The Blaine Amendment failed to receive the necessary approval from the Senate,5 but several states subsequently enacted comparable amendments in their respective constitutions prohibiting the public funding of religious schooling.6 Critics have used the religious bigotry associated with the Blaine Amendment to discredit these state facsimiles and the no-funding principle they represent; as critic-in-chief Justice Clarence Thomas has written, the legal rule prohibiting funding of religious schools "has a shameful pedigree that we [should] not hesitate to disavow . . . . It is [a] doctrine, born of bigotry, [that] should be buried now."7

I have written previously about the background to the Blaine Amendment, arguing that neither the history nor meaning of the Amendment can be easily distilled.8 The Blaine Amendment

was a fulcrum in the century-long struggle over the propriety, role, and character of universal public education in America while, at the same time, it served as the capstone of an eight year controversy over the legitimacy of Protestant-oriented public schooling, a controversy that raged along side the parochial school funding question. The Blaine Amendment had as much to do with the partisan climate of the post-Reconstruction era and related concerns about federal power over education as it did with Catholic animus. Included in the mix was a sincere effort to make public education available for children of all faiths and races, while respecting Jeffersonian notions of church-state separation. Those who characterize the Blaine Amendment as a singular exercise in Catholic bigotry thus give short shrift to the historical record and the dynamics of the times.9

This Article will consider the Blaine Amendment from a different, though related, perspective: whether it established or advanced a principle of constitutional significance. The legal controversy over the Blaine Amendment that has taken place over the past two decades has been misplaced. Particularly following the 2002 Cleveland voucher decision (Zelman v. Simmons-Harris),10 attention has turned to state constitutions as setting the rules for state aid to religion.11 The interpretation and even constitutionality of these state provisions have been inextricably tied to the Blaine Amendment.12 But the Blaine Amendment is insignificant as a constitutional event. While the Blaine Amendment is historically and politically significant, it matters little for constitutional purposes. The legal principles the Amendment embraced-nonsectarian public education and a prohibition on state funding of religious education-both predated the Amendment and were not significantly altered by it.13 Contemporary understandings of nonsectarian education and the no-funding principle emerged from the debates over the Blaine Amendment relatively unaffected.

In addition, the legal connection between the Blaine Amendment and a majority of the state no-funding provisions-I will resist referring to them as "Baby Blaines"-is uncertain at best. To be sure, twenty-two states adopted no-funding provisions in their constitutions during the fifty years following the defeat of the Blaine Amendment.14 Several of those provisions contain language that bears a similarity to language that appeared in one of the many versions of Mr. Blaine's proposed amendment.15 But the majority do not.16 Rather, most of the post-1876 no-funding provisions mimic language that can be found in earlier constitutions of other states.17 Despite their claims to the contrary, opponents of the no-funding principle have generally failed to demonstrate a connection between the Blaine Amendment and the various state provisions from legislative histories, convention records, or other historical sources.18 Instead, they have sought to taint the various state provisions with the stain of anti-Catholicism through guilt by association with the Blaine Amendment. But it is an argument based on innuendo and assumption, not historical fact.19

This Article argues that the Blaine Amendment is relatively insignificant-both as a constitutional event and as a tool for analyzing the no-funding amendments contained in the various state constitutions. Part I will consider the rise of the principle of nonsectarian education and its corollary, the no-funding principle. Both principles arose as solutions to a perceived need to create a morally reinforcing, financially secure, and universally accessible education system. Both principles predated the rise of nativism and the anti-Catholicism associated with the Blaine Amendment, and both principles maintained their validity apart from how nativists sought to pervert them for their own ends. Part II discusses the historical significance of the Blaine Amendment and its lack of constitutional significance. Finally, Part III considers the relationship between the Blaine Amendment and state constitutional no-funding provisions. While several of the later state provisions likely were inspired by the failed Blaine Amendment, it is impossible in most instances to establish a direct connection between the federal and state measures. Even if it is possible to link the provisions, it is irresponsible to attribute the possible motives of supporters for the federal proposal to those legislators who drafted the various state provisions. To be uncharitable to my own argument, it can be analogized to the adage of how to defend a dog-bite charge: "First, that was not my dog; second, my dog does not bite; and third, I do not own a dog." Similarly, the Blaine Amendment has no constitutional bite.

I. THE RISE OF THE NONSECTARIAN AND NO-FUNDING PRINCIPLES

Much ink has been spilled critiquing the origins of, motivations for, and necessity of the principle of nonsectarian education as it arose in the nineteenth century. A recurring problem in scholarship has been the tendency to view the assumptions and effects of nonsectarianism through a modern lens with current notions of ethnic and religious diversity and tolerance.20 Today, the efforts and aspirations of many early education leaders appear elitist and xenophobic, if not shortsighted and misguided, at best. But at the time, most education leaders-many trained as Protestant clergy and others with close ties to Protestant communities-sincerely sought to create an inclusive education system that would acculturate and assimilate children from diverse religious and national backgrounds into the unfolding American experience.21 Also, there has been a tendency to assign the disreputable motivations and actions of Protestant nativists to those individuals who were actually in charge of developing and operating America's early public schools.22

Another error in related scholarship has been to view nonsectarianism and the no-funding principle as concepts that remained static throughout much of the nineteenth century.23 First, there was no single model of nonsectarian education, despite the commanding influence of reformers such as Horace Mann.24 Local control over education and varying degrees of religious homogeneity ensured that educational patterns differed from one town to another. And then, the principle and practice evolved over time, going through at least three distinct phases.25 By the time of the Blaine Amendment, nonsectarian education in America was in the transition from its second phase to its third-from a curriculum that emphasized moral values by teaching "universal" religious principles to one that was increasingly secular with perfunctory reliance on religion.26 A similar development was also taking place in constitutional law prior to the Civil War, as states gradually added express provisions against funding of religious institutions to complement the already-existing "no compelled support" clauses that, at least on paper, placed restrictions on government support of religion.27 Each of these developments-the nonsectarian principle and the no-funding principle-will be discussed briefly in turn.

A. The Nonsectarian Principle

Nonsectarian education arose out of a general movement to establish a system of publicly-operated schools universally accessible to all children.28 With the creation of the new national government, political and civic leaders became convinced that the education of children was indispensable for the stability and ultimate success of the new republic. Noah Webster wrote that education was "essential to the continuance of republican governments," while Benjamin Rush insisted that a goal of education was to "convert men into republican machines," which was necessary if "we expect them to perform their parts properly in the great machine of the government of the state."29 Universal education, under the control of public authorities, would encourage knowledge, break down class differences, and train children in the essential skills for the still-unfolding republican society.30 This central mission of public education did not dissipate throughout the nineteenth century; even at the century's end people still expressed concern about the fragility of republican government and that the skills...